Ted Cruz

Ted Cruz's Assault on the Citizenship Rights of Americans

The Expatriate Terrorist Act will terrorize Americans more than ISIS

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After his third-place finish in New Hampshire, GOP presidential contender Ted Cruz is trying to reinvent himself as a

Ted Cruz Clown Car
DonkeyHotey / Foter / CC BY

civil libertarian in a bid for Sen. Rand Paul's supporters. Paul's supporters should be very wary. If Cruz's extreme anti-gay and anti-immigration tirades don't give them pause already, the Expatriate Terrorist Act, Cruz's unconstitutional brainchild, which Sen. Paul refuses to support, certainly should.

The bill's alleged purpose, as per the Texas senator's explanation during the New Hampshire GOP presidential debate, is to stop Americans who've joined ISIS from returning home to "wage jihad against America." That adds up to all of 12 Americans give or take. In exchange, however, the bill would expose 300 million U.S. citizens—both naturalized and natural born, both at home and abroad—to the threat of losing their citizenship.

Cruz first introduced this monstrosity in the Senate in 2014, only to have it shot down. But since the San Bernardino attacks, he has renewed his efforts to push it through the Senate Judiciary Committee, on which he sits, and bring it for a floor vote. Meanwhile, Rep. Steve King (R-Iowa) has introduced a companion bill in the House. And given that Republicans now control both chambers, absent a filibuster, this awful legislation could well pass Congress and reach the president's desk.

Why is it so awful?

To understand that, consider some background on what the government currently can and can't do: As per the 14th Amendment to the U.S. Constitution, citizenship is a right, not a privilege. As Justice Byron White explained in the 1980 Vance vs. Terraza ruling, "Expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct."

This means that the government cannot strip Americans of their citizenship without their consent—no matter how heinous their offense. "The government must establish that the individual knowingly, voluntarily, and intentionally relinquished his right," notes Georgetown University's David Cole, "just as courts must establish that an individual knowingly, voluntarily, and intentionally waived his trial rights before accepting a guilty plea."

But what the government can do is intercept ISIS agents when they try and re-enter the country, charge them with treason, sedition, or any number of other crimes, obtain a conviction, and put them away for a long time. The government can even potentially execute them. After a conviction—and only after that—Uncle Sam can launch a separate civil expatriation review to show that the offender intended to relinquish his or her citizenship, but with a lower evidentiary bar than the original conviction. Under current law, these offenses include such acts as bearing arms against the United States and incitement to rebellion.

Cruz's bill would change two things:

1. It would authorize the government to revoke citizenship rights without a court conviction.

2. It would also expand the list of expatriatable offenses to include "training" and "material assistance" to terrorist groups without defining either of those terms.

Cruz maintains that the bill would prevent Americans who have turned terrorist from re-entering the United States. This sounds good! But the more one thinks about it, the less sense it makes.

If the government has evidence that these folks are indeed terrorists, then why should it merely strip them of their citizenship and stop them from returning home (or leaving if they are already here)? Why shouldn't it also prosecute them? And if it doesn't have evidence, then why should they face any consequences at all?

The only way to understand Cruz's bill is that it aims to give government the power to take away the citizenship not of Americans against whom it actually has hard evidence—but against whom it doesn't. In other words, the point is to revoke the citizenship not of known but merely suspected terrorists.

This is very dangerous.

Consider how it could work: Say the Justice Department informs the State Department that it suspects some Americans of being involved in a listed terrorist group in a way that signals they intended to relinquish their citizenship. Basically, the State Department would use some procedure not specified in the bill to verify that suspicion. If it's satisfied, it would issue certificates to these Americans that their passport and citizenship had been revoked.

If they are out of the country when this happens, they would presumably be barred from returning home, something that would force them to live in another country as stateless residents, possibly illegally. If they tried to re-enter America, they would be detained. But if they are already home, they'd be stateless residents whom the government could likely detain at will. If they are expatriated when abroad, the only appeal that the law extends, notes Niskanen Center's David Bier, is to the very State Department that took away their citizenship in the first place, and only if there is substantial new evidence.

The scariest part of the bill is that without due process or a trial or the presumption of innocence, many innocent Americans would be condemned without having any opportunity to refute the evidence against them. The government can accuse them of whatever it wants on whatever grounds it likes without challenge. This is the kind of thing that passes for justice in the Islamic Republic of Iran.

But also troubling is that the government could use its citizenship-stripping powers to persecute political actions that go against standing government policy. If merely offering "material assistance" is the standard, then what is to stop the government from revoking the citizenship of black Muslim Americans who distribute pro-Hamas material? Or Irish Americans who hand out pro-Irish Republican Army pamphlets? Both outfits are or have been on the government's terrorist list.

It is very unlikely that Cruz's Alice-in-Wonderland exercise that turns standing judicial principles on their head would withstand constitutional scrutiny. But such concerns have prompted Sen. Paul to distance himself from this bill even though he himself previously called for revoking passports of Americans fighting with ISIS. "The Constitution already provides a means to deal with this by trying someone for treason," a Paul spokesperson told me via email. "And he would oppose anything that takes away Americans' rights without due process."

Cruz, a Harvard-trained lawyer, boasts that as a teenager he could recite the entire Constitution from memory. His campaign website says, "Ted Cruz has spent a lifetime fighting to defend the Constitution [which] was crafted by our founding fathers to act as chains to bind the mischief of government and to protect the liberties endowed to us by our Creator."

Clearly, Sen. Cruz's memory is failing him now—because the bill he's drafted unchains the government to do unimaginable mischief to the rights of ordinary Americans.

This column originally appeared in The Week.

NEXT: Donald Trump Is Totally Incoherent On Health Care Policy Because Policy Is Irrelevant to His Campaign

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  1. Whoa, whoa, whoa. So Amash is a “libertarian”?

    1. They grade on a curve. Compared to the rest of the House, he’s damn near an anarchist.

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      2. The iPhone 7 will run Apple’s next-generation A10 mobile chipset and, if previous versions are anything to go by, it should be an alarmingly powerful chipset. Apple’s A8 and A9 chipsets dominated the mobile space in 2014/15 showcasing just what was possible with processing power when you have complete control over specs, hardware and software.

        For more details please visit …… http://todaytechspot.com/

    2. If he endorsed Ted Cruz, he ain’t no libertarian.

      1. You can say that again. Now I will be forced to continue my policy of not donating to him.

  2. 1. It would authorize the government to revoke citizenship rights without a court conviction.

    2. It would also expand the list of expatriatable offenses to include “training” and “material assistance” to terrorist groups without defining either of those terms.

    I’m sure that would never be abused. No way. Never.

    1. Just like a guy providing web design services to the *non-violent, political wing* of a ‘designated terrorist organization’ would never face federal prosecution for doing so.

    2. I got into a quite heated argument with some coworkers about this very issue last month. You’d think that our service members understood their oath to “uphold and defend the constitution” or the dangers of setting this sort of precedent.

      Alas, if you had entertained that idea then you would be just as disappointed as I am.

  3. it would issue certificates to these Americans that their passport and citizenship had been revoked.

    Issue how? Via iPhone?

    1. Dronestrike.

      1. Just tape the papers to the bomb. It’s constitutional!

      2. Pelt them with faggot cookies!

  4. Didn’t this or a nearly identical story run a couple of days ago?

  5. As per the 14th Amendment to the U.S. Constitution, citizenship is a right, not a privilege.

    Well there’s yer problem. Why is citizenship a right the way free speech and privacy are rights? Is it only U.S. citizenship to which I have a right, or do I have the right to be a citizen of whatever country I want?

    1. Yes.

      But the stumbling block here is whether those other government s *recognize* your rights.

      1. That’s what I mean. I have as much right to citizenship as I do to a driver’s license.

        1. You have a right to drive without a driver’s license. The government is simply violating that right.

    2. Privacy isn’t a right. It’s not mentioned anywhere in the Constitution, and it’s nearly impossible to protect/enforce.

      1. Privacy is mentioned in the 4th and 5th amendments.

        1. I could see the argument for the 4th amendment, but what part of the 5th has anything to do with privacy?

          1. You have the right to remain silent. Anything you say can and will be used against you in a court of law.

            IOW you have the right to keep your activities – even criminal ones – private from the government.

        2. It’s included in the 9th and 10th as well. See all the stuff that’s not mentioned in the Constitution? It’s all in the 9th and 10th.

          1. The 9th forbids the government from using “you have no such right” as a legal justification. The 10th is about powers, not rights.

            1. Deny or disparage. The Ninth says your rights include more than just the ones mentioned in the other Amendments, Mr. Bork, and the Tenth says absent any provision in the Constitution, Congress has no power to infringe any of the rights mentioned in the previous nine amendments. Ink blot ’em all you want, your ultimate conclusion that your rights come from the Constitution is anathema to some of us Real Americans.

              I see what you may be getting at – SCOTUS has never held to that interpretation, but then again if you look at the opinions in Roe v Wade and Griswold v Connecticut it’s hard to say they didn’t use the Ninth precisely as a legal justification for saying “you have no such right”. (“The Ninth Amendment obviously does not create federally enforceable rights”, as William O Douglas said, which kinda suggests your only federally enforceable rights are those in the other Amendments, does it not?) But SCOTUS opinions on what the Constitution says can be changed, they aren’t carved in stone.

              1. I never said rights come from the Constitution.

                The SC has said the government has the power to regulate commercial, quasi-commercial, and not even remotely commercial activities because they might affect commerce in some abstruse way. Privacy is their hat trick to carve out arbitrary exceptions when they don’t like the consequences of their own reasoning.

                A good example of the 9A in action would be the courts summarily throwing out the no-fly list because the government says “you have no right to fly”. They haven’t done that, because they have no respect for the 9A, but that is what it would look like.

                Moreover, Griswold is in direct violation of the 10A. If the feds have no power to regulate contraception sales, then the states do, unless the Constitution expressly forbids them from doing so (and it doesn’t, even with the muddying of the waters done by the 14A).

                1. The SC has said the government has the *privilege* of doing so. With the implication that that privilege could be revoked.

                  Not that it will without a fight.

          2. See all the stuff that’s not mentioned in the Constitution? It’s all in the 9th and 10th.

            I thought that stuff was all in the “penumbra” – it’s something like the Sun’s corona, I think.

        3. Privacy is not an enforceable right, and is not mentioned in any of the amendments. The 4th explicitly says “the right of the people to be secure” and the 5th mentions no rights at all.

          1. Have you ever read Griswold?

            1. Griswold is wrong.

              The ends do not justify the means. The State of Connecticut had the power to ban contraception sales and the Federal judiciary did not have the authority to stop them.

              Moreover, Griswold (along with Roe and Lawrence) flies in the face of Wickard (and Raich). The government can stop the sale, production, and even use of wheat but not condoms?

              1. The problem the court had in Griswold, etc., was that they had no power to overturn bans on contraception, etc. unless they could show that it violated a ‘right’.

                There was no explicit, black-letter right being violated, so they had to go to penumbras and emanations. They couldn’t go to the 9th and 10th, because that would bring a whole raft of laws into question. The right to privacy, as an implied right rather than unenumerated right, allows the courts to exercise more control over the scope of the right.

                So you have a right to privacy to use contraception, but not right to privacy against, say, searches and seizures incidental to a traffic stop. Implied v unenumerated makes a big difference.

                1. What about a right to privacy to use the wheat I grew on my own farm?

                  Never mind that this use of the word “privacy” has only a very tenuous connection to what most people mean when they say “privacy”; the “implied vs unenumerated” dichotomy is not applicable to the example I already gave.

          2. Why does the word “privacy” need to be mentioned explicitly? The 4th amendment is ultimately about privacy, because such searches would violate people’s privacy in the first place. It protects your privacy even if it doesn’t use that term.

            1. I never said it “needs” to be mentioned in the Constitution. I’m saying it doesn’t exist as an enforceable right, and moreover it’s not mentioned in the Constitution (or any of the Amendments).

              You have a right against forced disclosure of potentially incriminating information concerning yourself. You have a right against searches and seizures not supported by legal warrants. You have various and sundry other procedural rights designed to limit the government’s ability to harm you.

              But your ex-wife has the right to spill all of your personal secrets, provided that what she says is not both false and harmful and your marriage vows* did not say she couldn’t. Your neighbors have the right to look in your window, provided that they are not violating your property doing so. The trash company has the right to look through your trash, and notify the government about what they discover, provided that you have no contract with them saying otherwise. And you have the right to record any interaction with another person, provided that they haven’t told you not to.

              Maybe this will make more sense: you have no right to privacy, but you have every right to take steps to protect your privacy.

              * = Yes, marriage vows should be enforceable the same as any other contract terms

      2. Saying that something isn’t a right merely because it’s not mentioned in the constitution is nonsense. The 4th amendment, in practice, protects your privacy in a number of ways. It doesn’t need to explicitly mention the word “privacy”.

    3. Also, this is not necessarily an endorsement of Cruz’s bill. Revocation of citizenship should not be done without a trial and conviction. Due process is a right.

  6. Exploited dread is a harsh bitch.

    1. Exploded bread in a borsch dish.

  7. OT: Is it possible to get an erection purely from schadenfreude?

    “The Stepford Student was founded to tackle the picture that Brendan O’Neill painted of us in this magazine in two ways. We wanted to show that young lefties aren’t dogged by a perpetual earnestness, and do actually possess a sense of humour and an ability to laugh things off, and we wanted to bring our arguments to a wider audience beyond the gilded cages of our universities.

    We failed. I ended up as the publication’s last editor, and we’ve shut up shop for good.”

    “Why? In the initial start-up phase, things looked good. All sorts of very hip and important activist types got in touch with us to say that it looked ‘amazing!!!’, that they were excited and the project gave them ‘hope’. Within just a few weeks, the tables had turned. We were criticised for publishing an article that suggested that student loans might not be the worst thing, because it didn’t fit in with the approved doxology that free education is a must-have, and we were pilloried for a tongue-in-cheek article ‘Am I only a feminist to get laid?’ because it showed a ‘flippant and harmful attitude towards feminism’.”

    1. “Indeed, our readers ? the stepford students themselves ? were so moved to outrage that 40 of them clubbed together and wrote a high-minded, patronising, clumsily-written open letter to us, signed: ‘We hope that this letter might stimulate some thought about what those ethics are, and how best to put them into practice.'”

      Wonderful. Just wonderful.

      1. *ponders question…clicks link*

        Well, look at that. It appears the answer is yes.

      2. It’s unfortunate that so many will fail to spot the actual problem.

      3. If my schadenboner lasts more than four hours Irish, I’m sending you the bill.

      4. Rule 43, Irish. Schadenfreude porn is a thing, you racist.

    2. “The Stepford Student was founded to tackle the picture that Brendan O’Neill painted of us

      Did you read the article he’s referring to?

      When I told them that at the fag-end of the last millennium I had spent my student days arguing against the very ideas they were now spouting ? against the claim that gangsta rap turned black men into murderers or that Tarantino flicks made teens go wild and criminal ? not so much as a flicker of reflection crossed their faces. ‘Back then, the people who were making those censorious, misanthropic arguments about culture determining behaviour weren’t youngsters like you,’ I said. ‘They were older, more conservative people, with blue rinses.’ A moment’s silence. Then one of the Stepfords piped up. ‘Maybe those people were right,’ he said.

  8. Nobody wants to let graduates from the ISIS School of Beheading Arts back into the country.

    If we don’t want the President to keep citing the AUMF to do something awful with such people, then there probably should be some new legislation.

    The biggest problems with the AUMF included that it was too vague and it didn’t have a sunset clause.

    If the new legislation were specific to ISIS and had a time limit attached, I’m not sure average Americans would have to worry forever more about being deported.

    1. Why would you need to strip their citizenship when you could just throw them in jail for participation in war crimes?

      1. Stripping their citizenship without due process sounds easier, though.

      2. What if they haven’t participated in any war crimes yet?

        If Congress has the power to make war, don’t they also have the power to do lesser things? I don’t think it’s in our interests to go to war in Syria. Do we have to protect ourselves from ISIS operatives? I’d rather not.

        I’d rather Congress acknowledged that although we are not officially at war in Syria, ISIS is at war with us, and there are consequences for joining with a terrorist enemy of the United States.

        Treason or war crimes may not have occurred, and stripping people of their citizenship isn’t right. A law that made appropriate criminal penalties for fraternizing with the enemy might be appropriate–if it specified that the criminal had to meet in person with ISIS specifically, and if there were a sunset clause.

        I certainly don’t see anything in the Constitution that says self-proclaimed enemies of the United States can send as many potential sleeper agents as they want to live among us, and there’s nothing we can do about it if they’re American citizens.

        1. “Do we have to [declare war] to protect ourselves from ISIS operatives? I’d rather not.”

          Fixed!

        2. How many sleeper agents does it take before *they’re* American and *we’re* the enemies? 50.1%?

    2. “Nobody wants to let graduates from the ISIS School of Beheading Arts back into the country.”

      Occupational licensing has always been an effective deterrent.

    3. “Whatever it takes, as long as it takes.” – Sen. Lindsey Graham

      The biggest problems with best feature of the AUMF included that it was too vague and it didn’t have a sunset clause.

      When ISIS collapses and the Islamic Jihadist State or the Jihadist State of Islam or the Judean People’s Front replaces them, we’ll always have been at war with them.

      1. Why not? Because there is no AUMF against ISIS. Obama is relying on the *2001* AUMF for Al-Queda.

  9. If “material assistance” is undefined, one would assume a common definition of the word, which I would not think to include speech. Unless it’s a term of art, material assistance should be distinct from formal assistance. “Training”, however, is something which could be legitimately applied to an extremely broad range of innocent acts. And State is such a clusterfuck it’d be hard to trust them to empty the trash, much less determine who may or may not be a citizen.

  10. It’s time to realize that most people neither care what you think nor give a shit about your civil liberties. This is not unnatural. The government that gives them power over your life is what’s unnatural.

  11. “That adds up to all of 12 Americans give or take.”

    This is a terrible law, but outside of that CBS article I haven’t seen anyone claiming the number is only 12.

    A congressional report scheduled for release Tuesday suggests some 30,000 people worldwide have gone to Syria to fight in recent years. That includes some 250 Americans who’ve gone there and to Iraq.

    I know congress isn’t exactly trustworthy, but even your own source says this:

    “The U.S. government has positively identified a relatively small number of Americans – fewer than 12 – who have joined ISIS, but precise numbers are unavailable and intelligence assessments, while educated, are still estimates due to limited U.S. intelligence in Syria, CBS News correspondent Bob Orr reports.

    There is also a group of Americans who have linked up with al Qaeda’s affiliate al Nusra, Orr reports, and there is even a larger number of unknown Americans who have joined the Syria Free Army. Some have gone to aid groups and some have joined the jihadists.”

    So we don’t actually know the real number involved with ISIS and a bunch of other Americans are with an Al Qaeda front. The number is definitely above 12 fighting w/ Jihadists right now.

    1. Hence the “give or take.”

  12. I understand the dangers of Cruz’s bill but I think it’s a bit hyperbolic to claim that it would be “like totally the most unconstitutional thing ever man!”

  13. man, Canadians sure have strong opinions about U.S. citizenship.

  14. We covered this a week ago. (It’d be nice if Dalmia could link back to her prior story with comments.)

    From what I remembered I typed then, the Cruz language adds “membership in a foreign terrorist organization” (FTO) as one of those affirmative acts, like joining a foreign military, that .gov can use in a hearing to show that you intended to forfeit your citizenship. That, to me, isn’t that controversial, provided that we already have a law where if .gov shows by a preponderance of the evidence that you voluntarily intended to join said foreign organization, you are deemed to have voluntarily forfeited U.S. citizenship.

    The stinker, IMHO, is language that also ensnares people who “provid[e] training or material assistance to, any foreign terrorist organization” That one is tougher to prove that someone voluntarily intended to provide material assistance to a FTO, which I see as the crux of the 8 USC 1481 statute that Cruz’s bill intends to modify. One can inadvertently provide material assistance through money, and one shouldn’t lose their citizenship through an inadvertent action.

    But a lot of the actions that Dalmia’s up in arms about, already existed in Section 1481 before Cruz’s bill.

    1. Why should anyone lose their citizenship without due process? Forfeiture of citizenship on a mere preponderance of the evidence standard is, quite frankly, terrifying.

      1. I agree, on the required standard. I’d count a stripping of citizenship as a criminal penalty, not a civil one, and criminal penalties shouldn’t be imposed, IMHO, without proof beyond a reasonable doubt.

        Still, that’s what the law was before Cruz came along with his bill. Even with Cruz’s bill, I think an adversarial hearing, with notice, a right to appeal, and right to counsel, would still be required. All the bill changes are the affirmative voluntary acts that constitute a voluntary renunciation of citizenship.

    2. From what I remembered I typed then, the Cruz language adds “membership in a foreign terrorist organization” (FTO) as one of those affirmative acts, like joining a foreign military, that .gov can use in a hearing to show that you intended to forfeit your citizenship.

      Sounds familiar to me too. (In fact, look at the date of the article. Feb 23. Today is 25. An Apple article was similarly recycled today. I ended up commenting on the brilliance of my original comment. It’s such a cross to bear, being the one word of Truth. )

      All Cruz really *added* was treating people who join a FTO like people who join a foreign military.

      But since everyone has the *right* to be a US citizen, because OPEN BORDERZ, the hysterical pants shitting ensued.

  15. Republicans shows us murdering terrorists; Democrats show us starving babies; it’s all done to stimulate an emotional response to overwhelm rational thought so they can fuck us over which ever way they want.

  16. I can’t wait for Trump to threaten a lawsuit over this – if Ted Cruz gets to get free campaign publicity from introducing a bill in the Senate, Donald J Trump should get the same right to introduce a bill in the Senate. It’s only fair.

    1. You realize Trump isn’t a senator, right?

      1. You realize logic doesn’t exist in Trumptopia?

      2. You do realize that if Trump were a senator he wouldn’t have to threaten a lawsuit to be able to introduce a bill in the Senate, right?

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  19. Remember, the Constitution is not a Suicide Pact.
    – J. Robert Jackson

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  21. Cruz- just another scam artist: “The Men Behind Ted Cruz: Neocons and a CIA Propagandist”:

    http://www.lewrockwell.com/2016/02/no…..pagandist/

    Dream On?:

    “In your dream, Donald Trump is not a fraud,
    In your dream, Sanders is not a fraud,
    In your dream,all the rest are not frauds,
    In your dream, Obama is not a fraud,
    In your dream, Reagan was not a fraud,
    In your dream, all the rest were not frauds,

    In your dream, the constitution was not a scam,
    In your dream, the Supreme court is not a scam,
    In your dream, 9/11 was not a scam…….”

    Lyrics excerpted from:

    “Dreams [Anarchist Blues]”:

    https://www.youtube.com/watch?v=QMXtoUtXrTU

    Regards, onebornfree.
    onebornfreedotblogspotdotcom

  22. What, being “pro-gay” is something to be proud of?
    Being not against “immigration,” as you claim, but against tens of millions of illegals swarming over the border (which is hardly “immigration” – it’s legally speaking, breaking and entering) allowed in by Democratic officials, who want thenm in as loyal voters, like the Blacks.Dems could care less about Hispanics – to them they are votes that will keep them in power – all they have to do is not prosecute them and give them welfare and healthcare. That’s keep them down on the plantation, as it has done for Blacks all these years.
    It’s called buying votes using other people’s money.

  23. And so Dalmia the Fool manufactures a few more illogical things to fear, and illogically calls them “Constitutional rights.” Only by the greatest stretch can gay marriage be called a Constitutional right,. I wasn’t ware that the Constitution ever mentioned marriage, much less phony marriage.

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